Common use of REIT Provisions Clause in Contracts

REIT Provisions. (a) The Company and the Members acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in the Company, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company shall not take any action that would result in any of the following consequences to the Company (treating the Company as if it were a REIT, but only with respect to assets and operational matters as opposed to ownership), without the prior written consent of CVOP: (i) to recognize any income that would cause the Company to fail to satisfy either the “75 percent gross income test” set forth in Code Section 856(c)(3) or the “95 percent gross income test” set forth in Code Section 856 (c)(2); (ii) to hold any property that would cause the Company to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules set forth in Code Section 856(c)(4)) any of (A) the “75 percent asset test” set forth in Code Section 856(c)(4)(A), (B) the “25 percent asset test” set forth in Code Section 856(c)(4)(B)(i), (C) the “25 percent value limitation” set forth in Code Section 856(c)(4)(B)(ii), (D) the “5 percent value limitation” set forth in Code Section 856(c)(4)(B)(iii)(I), or (E) the “10 percent vote and value limitations” set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and (iii) to engage in a transaction that reasonably could be expected to be treated as a “prohibited transaction” within the meaning of Code Section 857(b)(6)(B)(iii) unless the transaction qualifies for the safe harbor with respect to a “prohibited transaction” set forth in Code Section 857(b)(6)(C) (taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (including any joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), which information CVOP will provide to the Company upon written request).

REIT Provisions. (a) The Company Partnership and the Members Partners acknowledge and agree that Xxxxxx the Eola REIT, which owns CVOP an interest in Eola and therefore an indirect interest in the CompanyPartnership, is treated as intends to elect to be a “real estate investment trust,” within the meaning of Code Section 856856 (a “REIT”), and is therefore subject to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOPEola, the Company Partnership shall not take (and shall cause each of the Operating Companies not to take) any action that would result in any of the following consequences to the Company Partnership (treating the Company Partnership as if it were a REIT, but only with respect to assets and operational matters as opposed to ownership), without the prior written consent of CVOP:): (i) to recognize any income that would cause the Company Partnership to fail to satisfy either the “75 percent gross income test” set forth in Code Section 856(c)(3) or the “95 percent gross income test” set forth in Code Section 856 (c)(2); (ii) to hold any property that would cause the Company Partnership to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules set forth in Code Section 856(c)(4)) any of (A) the “75 percent asset test” set forth in Code Section 856(c)(4)(A), (B) the “25 percent asset test” set forth in Code Section 856(c)(4)(B)(i), (C) the “25 percent value limitation” set forth in Code Section 856(c)(4)(B)(ii), (D) the “5 percent value limitation” set forth in Code Section 856(c)(4)(B)(iii)(I), or (E) the “10 percent vote and value limitations” set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and (iii) to engage in a transaction that reasonably could be expected to be treated as a “prohibited transaction” within the meaning of Code Section 857(b)(6)(B)(iii) unless the transaction qualifies for the safe harbor with respect to a “prohibited transaction” set forth in Code Section 857(b)(6)(C) (taking into account any other “safe harbor” transactions engaged in by the Xxxxxx Eola REIT or any Affiliate (including any joint venture, partnership or limited liability company in which the Xxxxxx Eola REIT or an Affiliate invests), which information CVOP the Eola REIT will provide to the Company Partnership upon written request). Notwithstanding anything else in this Agreement, but without limiting the application of subsection (a) above and this subsection (b), the Partnership shall take (and cause the Operating Companies to take), and the Partners shall cause the Partnership to take, such other steps as shall be requested in writing in good faith by the Eola REIT as necessary to permit the Eola REIT to qualify as a REIT. (c) This Section 5.5 shall apply only if the Managing General Partner is not directly or indirectly controlled by the Eola REIT or an Affiliate thereof.

REIT Provisions. (a) The Company Partnership and the Members Limited Partners acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in the CompanyPartnership, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company Partnership shall not take any action that would result in any of the following consequences to the Company Partnership (treating the Company Partnership as if it were a REIT, but only with respect to assets and operational matters as opposed to ownership), without the prior written consent of CVOP: (i) to recognize any income that would cause the Company Partnership to fail to satisfy either the “75 percent gross income test” set forth in Code Section 856(c)(3) or the “95 percent gross income test” set forth in Code Section 856 (c)(2); (ii) to hold any property that would cause the Company Partnership to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules set forth in Code Section 856(c)(4)) any of (A) the “75 percent asset test” set forth in Code Section 856(c)(4)(A), (B) the “25 percent asset test” set forth in Code Section 856(c)(4)(B)(i), (C) the “25 percent value limitation” set forth in Code Section 856(c)(4)(B)(ii), (D) the “5 percent value limitation” set forth in Code Section 856(c)(4)(B)(iii)(I), or (E) the “10 percent vote and value limitations” set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and (iii) to engage in a transaction that reasonably could be expected to be treated as a “prohibited transaction” within the meaning of Code Section 857(b)(6)(B)(iii) unless the transaction qualifies for the safe harbor with respect to a “prohibited transaction” set forth in Code Section 857(b)(6)(C) (taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (including any joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), which information CVOP will provide to the Company Partnership upon written request).

REIT Provisions. (a) The Company General Partner and the Members acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in Partnership shall use commercially reasonable efforts to cause the Company, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject Partnership to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company shall not take any action that would result in any of the following consequences to the Company (treating the Company operate as if it were a subject to the real estate investment trust (“REIT”) rules of the Code described below, but only with respect to assets and operational matters except as opposed to ownership), without the otherwise permitted by prior written consent of CVOPthe Partners: (i) to recognize any income that would cause the Company to fail to satisfy either the “75 percent gross income test” set forth in Code Section 856(c)(3) or of the “Code and the "95 percent gross income test” set forth in Code Section 856 (c)(2);856(c)(2) of the Code; and (ii) to hold any property that would cause the Company to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules gross assets tests set forth in Code Section 856(c)(4)856(c) any of the Code: (A) the “75 percent asset test” " set forth in Code Section 856(c)(4)(A)) of the Code, (B) the “25 percent asset test” " set forth in Code Section 856(c)(4)(B)(i)) of the Code, (C) the “25 "20 percent value limitation” set forth in Code Section 856(c)(4)(B)(ii)) of the Code, (D) the “5 percent value limitation” set forth in Code Section 856(c)(4)(B)(iii)(I), or ) of the Code and (E) the “10 percent vote and value limitations” set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and) of the Code. For purposes of the foregoing tests, any “mezzanine” loans secured by an equity interest in an entity and any interest therefrom shall not be treated as satisfying such tests unless such loans and interest are in substantial compliance with the requirements of Revenue Procedure 2003-65, except as otherwise permitted by prior written consent of the Partners. (iiib) The General Partner and the Partnership shall use commercially reasonable efforts to engage cause the Partnership not to dispose of any real property in a transaction that reasonably could be expected to would be treated as a “prohibited transaction” within the meaning of Code Section 857(b)(6)(B)(iii) of the Code, unless (i) the transaction qualifies for the safe harbor with respect to a “prohibited transaction” harbor, set forth in Code Section 857(b)(6)(C) (of the Code, applied to the Partnership as if the Partnership were subject to Section 857(b)(6), taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (respective Partner in determining whether seven sales has occurred during the year, including any such transactions engaged in by a joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), such Partner invests (which information CVOP such Partner will provide to the Company General Partner and Partnership upon written request), (ii) the transaction is required under this Agreement, (iii) the property is disposed of in connection with or in lieu of foreclosure, (iv) the property is transferred in a tax free exchange under the Code, (v) the Partners consent or (vi) the Executive Committee approves such transaction by a Supermajority Vote. (c) The General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to make distributions to the Partners in compliance with the “90% distribution requirement” of Section 857(a)(1) of the Code, provided that the General Partner and the Partnership shall not be in violation of this Section 12.19(c) if: (i) the Partnership makes the distributions required by Articles 7 and 9 of this Agreement, and (ii) if the distributions required by Articles 7 and 9 of this Agreement are insufficient to satisfy the 90% distribution requirement, the General Partner and Partnership shall (A) notify the Partners of the insufficiency, (B) (B) notify the Partners of whether the Partnership is fully leveraged to the extent permitted by the debt ratio set forth in Section 3.8(a) of the Agreement (75%), and (C) (C) (1) if the Partnership’s debt ratio is below the permitted threshold (75%), the General Partner shall not be required to incur debt to make additional distributions unless a Partner requests it, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to the requesting Partner and (2) if the Partnership’s debt ratio is at the maximum permitted (75%), the General Partner shall not be required to incur debt to make additional distributions unless both LMLP and Inland consent, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to both Partners. If an amount otherwise available for distribution pursuant to Article 7 of the Agreement is used to acquire an Approved Qualified Asset or fund a capital expenditure approved by a Supermajority Vote of the Executive Committee or consented to by the distributee Partner, such Partner’s share of such distribution shall be treated as distributed to the Partner for purposes of satisfying this Section 12.19(c). (d) Without limiting the foregoing, the General Partner and the Partnership shall take such other reasonable steps as shall be requested in writing in good faith by each Partner and its ultimate Parent entity (Inland Real Estate Trust, Inc. in the case of Inland and Lexington Realty Trust in the case of LMLP), which the requesting Partner and Parent believe in good faith is necessary in order for the Parent (and, in the case of LMLP, LMLP) to continue to qualify as a REIT (determined assuming that, without regard to its investment in the Partnership, such ultimate Parent entity (or LMLP) otherwise would qualify as a REIT) and no other reasonable steps or action could be taken by the requesting Partner or Parent (in lieu of the Partnership taking any requested steps) to enable the Parent to so qualify. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall the General Partner or Partnership have any liability to a Partner or Affiliate with respect to its failure to qualify as a REIT so long as the General Partner and Partnership have acted in good faith and used commercially reasonable efforts to satisfy the obligations set forth in this Section 12.19.

REIT Provisions. (a) The Company General Partner and the Members acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in Partnership shall use commercially reasonable efforts to cause the Company, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject Partnership to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company shall not take any action that would result in any of the following consequences to the Company (treating the Company operate as if it were a subject to the real estate investment trust (“REIT”) rules of the Code described below, but only with respect to assets and operational matters except as opposed to ownership), without the otherwise permitted by prior written consent of CVOPthe Partners: (i) to recognize any income that would cause the Company to fail to satisfy either the “"75 percent gross income test” " set forth in Code Section 856(c)(3) or of the “Code and the "95 percent gross income test” " set forth in Code Section 856 (c)(2);856(c)(2) of the Code; and (ii) to hold any property that would cause the Company to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules gross assets tests set forth in Code Section 856(c)(4)856(c) any of the Code: (A) the “"75 percent asset test” " set forth in Code Section 856(c)(4)(A)) of the Code, (B) the “"25 percent asset test” " set forth in Code Section 856(c)(4)(B)(i)) of the Code, (C) the “25 "20 percent value limitation” " set forth in Code Section 856(c)(4)(B)(ii)) of the Code, (D) the “"5 percent value limitation” " set forth in Code Section 856(c)(4)(B)(iii)(I), or ) of the Code and (E) the “"10 percent vote and value limitations” " set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and) of the Code. For purposes of the foregoing tests, any ”mezzanine” loans secured by an equity interest in an entity and any interest therefrom shall not be treated as satisfying such tests unless such loans and interest are in substantial compliance with the requirements of Revenue Procedure 2003-65, except as otherwise permitted by prior written consent of the Partners. (iiib) The General Partner and the Partnership shall use commercially reasonable efforts to engage cause the Partnership not to dispose of any real property in a transaction that reasonably could be expected to would be treated as a “"prohibited transaction” " within the meaning of Code Section 857(b)(6)(B)(iii) of the Code, unless (i) the transaction qualifies for the safe harbor with respect to a “prohibited transaction” harbor, set forth in Code Section 857(b)(6)(C) (of the Code, applied to the Partnership as if the Partnership were subject to Section 857(b)(6), taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (respective Partner in determining whether seven sales has occurred during the year, including any such transactions engaged in by a joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), such Partner invests (which information CVOP such Partner will provide to the Company General Partner and Partnership upon written request), (ii) the transaction is required under this Agreement, (iii) the property is disposed of in connection with or in lieu of foreclosure, (iv) the property is transferred in a tax free exchange under the Code, (v) the Partners consent or (vi) the Executive Committee approves such transaction by a Supermajority Vote. (c) The General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to make distributions to the Partners in compliance with the “90% distribution requirement” of Section 857(a)(1) of the Code, provided that the General Partner and the Partnership shall not be in violation of this Section 12.19(c) if: (i) the Partnership makes the distributions required by Articles 7 and 9 of this Agreement, and (ii) if the distributions required by Articles 7 and 9 of this Agreement are insufficient to satisfy the 90% distribution requirement, the General Partner and Partnership shall (A) notify the Partners of the insufficiency, (B) (B) notify the Partners of whether the Partnership is fully leveraged to the extent permitted by the debt ratio set forth in Section 3.8(a) of the Agreement (75%), and (C) (C) (1) if the Partnership’s debt ratio is below the permitted threshold (75%), the General Partner shall not be required to incur debt to make additional distributions unless a Partner requests it, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to the requesting Partner and (2) if the Partnership’s debt ratio is at the maximum permitted (75%), the General Partner shall not be required to incur debt to make additional distributions unless both LMLP and Inland consent, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to both Partners. If an amount otherwise available for distribution pursuant to Article 7 of the Agreement is used to acquire an Approved Qualified Asset or fund a capital expenditure approved by a Supermajority Vote of the Executive Committee or consented to by the distributee Partner, such Partner’s share of such distribution shall be treated as distributed to the Partner for purposes of satisfying this Section 12.19(c). (d) Without limiting the foregoing, the General Partner and the Partnership shall take such other reasonable steps as shall be requested in writing in good faith by each Partner and its ultimate Parent entity (Inland Real Estate Trust, Inc. in the case of Inland and Lexington Realty Trust in the case of LMLP), which the requesting Partner and Parent believe in good faith is necessary in order for the Parent (and, in the case of LMLP, LMLP) to continue to qualify as a REIT (determined assuming that, without regard to its investment in the Partnership, such ultimate Parent entity (or LMLP) otherwise would qualify as a REIT) and no other reasonable steps or action could be taken by the requesting Partner or Parent (in lieu of the Partnership taking any requested steps) to enable the Parent to so qualify. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall the General Partner or Partnership have any liability to a Partner or Affiliate with respect to its failure to qualify as a REIT so long as the General Partner and Partnership have acted in good faith and used commercially reasonable efforts to satisfy the obligations set forth in this Section 12.19.

REIT Provisions. (a) The Company General Partner and the Members acknowledge and agree that Xxxxxx REIT, which owns CVOP and therefore an indirect interest in Partnership shall use commercially reasonable efforts to cause the Company, is treated as a “real estate investment trust,” within the meaning of Code Section 856, and is therefore subject Partnership to the requirements set forth in Code Sections 856 through 859. (b) Notwithstanding anything else in this Agreement, without the prior written approval of CVOP, the Company shall not take any action that would result in any of the following consequences to the Company (treating the Company operate as if it were a subject to the real estate investment trust (“REIT”) rules of the Code described below, but only with respect to assets and operational matters except as opposed to ownership), without the otherwise permitted by prior written consent of CVOPthe Partners: (i) to recognize any income that would cause the Company to fail to satisfy either the “"75 percent gross income test” " set forth in Code Section 856(c)(3) or of the “Code and the "95 percent gross income test” " set forth in Code Section 856 (c)(2);856(c)(2) of the Code; and (ii) to hold any property that would cause the Company to fail to satisfy on the last day of each calendar quarter (determined taking into account the cure period rules gross assets tests set forth in Code Section 856(c)(4)856(c) any of the Code: (A) the “"75 percent asset test” " set forth in Code Section 856(c)(4)(A)) of the Code, (B) the “"25 percent asset test” " set forth in Code Section 856(c)(4)(B)(i)) of the Code, (C) the “25 "20 percent value limitation” " set forth in Code Section 856(c)(4)(B)(ii)) of the Code, (D) the “"5 percent value limitation” " set forth in Code Section 856(c)(4)(B)(iii)(I), or ) of the Code and (E) the “"10 percent vote and value limitations” " set forth in Code Sections 856(c)(4)(B)(iii)(II) and (III); and) of the Code. For purposes of the foregoing tests, any ”mezzanine” loans secured by an equity interest in an entity and any interest therefrom shall not be treated as satisfying such tests unless such loans and interest are in substantial compliance with the requirements of Revenue Procedure 2003-65, except as otherwise permitted by prior written consent of the Partners. (iiib) The General Partner and the Partnership shall use commercially reasonable efforts to engage cause the Partnership not to dispose of any real property in a transaction that reasonably could be expected to would be treated as a “"prohibited transaction” " within the meaning of Code Section 857(b)(6)(B)(iii) of the Code, unless (i) the transaction qualifies for the safe harbor with respect to a “prohibited transaction” harbor, set forth in Code Section 857(b)(6)(C) (of the Code, applied to the Partnership as if the Partnership were subject to Section 857(b)(6), taking into account any other “safe harbor” transactions engaged in by the Xxxxxx REIT or any Affiliate (respective Partner in determining whether seven sales has occurred during the year, including any such transactions engaged in by a joint venture, partnership or limited liability company in which the Xxxxxx REIT or an Affiliate invests), such Partner invests (which information CVOP such Partner will provide to the Company General Partner and Partnership upon written request), (ii) the transaction is required under this Agreement, (iii) the property is disposed of in connection with or in lieu of foreclosure, (iv) the property is transferred in a tax free exchange under the Code, (v) the Partners consent or (vi) the Executive Committee approves such transaction by a Supermajority Vote. (c) The General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to make distributions to the Partners in compliance with the “90% distribution requirement” of Section 857(a)(1) of the Code, provided that the General Partner and the Partnership shall not be in violation of this Section 12.19(c) if: (i) the Partnership makes the distributions required by Articles 7 and 9 of this Agreement, and (ii) if the distributions required by Articles 7 and 9 of this Agreement are insufficient to satisfy the 90% distribution requirement, the General Partner and Partnership shall (A) notify the Partners of the insufficiency, (B) (B) notify the Partners of whether the Partnership is fully leveraged to the extent permitted by the debt and preferred equity ratio set forth in Section 3.8(a) of the Agreement (75%), and (C) (C) (1) if the Partnership’s debt and preferred equity ratio is below the permitted threshold (75%), the General Partner shall not be required to incur debt to make additional distributions unless a Partner requests it, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to the requesting Partner and (2) if the Partnership’s debt and preferred equity ratio is at the maximum permitted (75%), the General Partner shall not be required to incur debt to make additional distributions unless both LMLP and Inland consent, in which case the General Partner and the Partnership shall use commercially reasonable efforts to cause the Partnership to incur additional debt on commercially reasonable terms in order to make such additional distributions to both Partners. If an amount otherwise available for distribution pursuant to Article 7 of the Agreement is used to acquire an Approved Qualified Asset or fund a capital expenditure approved by a Supermajority Vote of the Executive Committee or consented to by the distributee Partner, such Partner’s share of such distribution shall be treated as distributed to the Partner for purposes of satisfying this Section 12.19(c). (d) Without limiting the foregoing, the General Partner and the Partnership shall take such other reasonable steps as shall be requested in writing in good faith by each Partner and its ultimate Parent entity (Inland Real Estate Trust, Inc. in the case of Inland and Lexington Realty Trust in the case of LMLP), which the requesting Partner and Parent believe in good faith is necessary in order for the Parent (and, in the case of LMLP, LMLP) to continue to qualify as a REIT (determined assuming that, without regard to its investment in the Partnership, such ultimate Parent entity (or LMLP) otherwise would qualify as a REIT) and no other reasonable steps or action could be taken by the requesting Partner or Parent (in lieu of the Partnership taking any requested steps) to enable the Parent to so qualify. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall the General Partner or Partnership have any liability to a Partner or Affiliate with respect to its failure to qualify as a REIT so long as the General Partner and Partnership have acted in good faith and used commercially reasonable efforts to satisfy the obligations set forth in this Section 12.19.